WAYNE SIMEON and REPATRIATION COMMISSION
[2009] AATA 581
•5 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 581
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/0547
VETERANS' APPEALS DIVISION ) Re WAYNE SIMEON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date5 August 2009
PlaceMelbourne
Decision The decision under review made by the Veterans’ Review Board with respect to the condition of hypertension is affirmed. The decision insofar as is concerned Post Traumatic Stress Disorder and alcohol dependence is set aside and in substitution it is decided that those conditions are war-caused.
1. The application is remitted to the respondent for assessment of pension in accordance with these reasons.
..............................................
John Handley
Senior Member
CATCHWORDS – veterans’ entitlements – applicant served in South Vietnam; observed a body, apparently executed, tied to a cairn on side of a roadway; when driving a truck with 8 tonnes of crushed rock its brakes failed when on an incline; whether events occurred; whether they constitute category 1A and/or 1B stressors; PTSD, alcohol dependence and abuse war-caused; decision set aside.
Mines v Repatriation Commission [2004] FCA 1331
Repatriation Commission v Deledio (1998) 49 ALD 193
REASONS FOR DECISION
Mr John Handley, Senior Member 2. The applicant is presently 60 years of age and was previously a member of the Australian Army. He claims acceptance of the conditions of Post-Traumatic Stress Disorder or Major Depressive Disorder and Alcohol Dependence as war‑caused. Claims for acceptance of those conditions were rejected by the respondent and affirmed by the Veterans' Review Board (VRB).
3. It was the case of the applicant that the conditions for which he now seeks acceptance arose out of stressful incidents whilst he served in South Vietnam (SVN) between 24 September 1970 and 19 August 1971. He was then serving as a truck driver in the Transport Division of the 1st Field Squadron of the Royal Australian Engineers at Nui Dat. The applicant presently receives 90 per cent of General Rate pension having regard to a number of other accepted disabilities, one of which is hypertension and which was challenged in these proceedings by the respondent. That is to say, it sought by these proceedings to have a finding made that the condition of hypertension should not have been accepted as war‑caused.
4. The applicant relied on two stressors in service being the sight of a deceased person on the side of a roadway approximately three months after arriving in SVN and, on another occasion, the brakes of a truck failing when he was carrying eight tonnes of crushed rock.
5. The applicant said that he is presently employed as a cleaner and a relief cook at the Barham Hospital. He grew up in Barham in southern New South Wales and participated in sports and other recreations. He said he was a sociable person. He left school at the age of 15 and worked with his father who was self employed as a drycleaner. At the age of 19 he obtained employment at the local hospital in its laundry. After discharge from service he returned to the Barham Hospital. From 1973 he was employed by the New South Wales Water Commission as a drag line operator. In 1977 he took over his father's dry cleaning business for approximately five years and thereafter obtained work as a farm labourer and as a cleaner. He returned to the Barham Hospital where he has been a full time employee since 1984.
6. Prior to enlistment, the applicant said that he would drink three or four, seven ounce glasses of full strength beer on weekends only. He said he could not afford to drink during the week and was also saving money to buy a car. During his recruit training, he would consume two pots of full strength beer per night and after arriving in Vietnam he initially consumed two 370ml cans of full strength beer daily.
7. The first stressful incident occurred approximately three months after arriving in SVN. The applicant said that he was granted leave on a Saturday afternoon to travel to Nui Dat for the weekend. A Mark III truck was used to convey persons who had been granted leave. On the occasion of this episode, the applicant estimated that approximately 20 persons were in the back of a truck, seated in two rows. The applicant said he knew about five or six persons in the truck who were from the Transport Division but he could not recall their names. He said he was seated on the driver's side of the truck approximately two persons from the rear of it. He thought the truck left the base at approximately 12.30pm and recalled travelling through a village but he could not recall its name.
8. The applicant understood that speed restrictions of 20kms per hour applied in towns or villages in order to reduce dust. As his truck was passing through the village, at a slow speed, he saw a body on the side of the road. He was shocked by it and stood up to observe it. He observed a female person, dressed in black, tied to a stone cairn. The person had obviously been shot in the forehead and congealed blood which was black in colour surrounded the wound. He noticed that the body was bloated. The person was in a seated position with legs forward and the torso tilted at 80 degrees. The applicant said that someone else in the truck had said to him or others that the person was either Viet Cong or a Southerner helping the Viet Cong. He said the body would have deliberately been left in its position as a warning.
9. The applicant said that the body was located within the village or town which was made up of about 10 buildings. He said that it was approximately two to three metres off the side of the road and was obviously visible. He said that he had also had heard from someone else that it was a practice to display bodies in this manner for a period of three days.
10. The applicant said that the sight of the body was upsetting and he was frightened and petrified. He remembered that his thoughts at the time were it’s going to happen to me. He said he continued to observe it for four or five seconds whilst in a standing position on the back of the truck to make sure what I was seeing. Later he did not talk to other persons about it or complete any report. The truck continued without stopping and after arriving at Nui Dat the applicant spent the remainder of Saturday and most of the following day at the Peter Badcoe Club drinking alcohol.
11. Following this event the applicant said that he increased his consumption of alcohol because he could not sleep. He purchased beer tickets off others and commenced to drink between six and eight cans of beer per night. He also purchased one litre bottles of rum from an American store. Over the years the applicant's consumption of alcohol has increased to the extent that whilst he was drinking a number of stubbies per night after discharge, he then started to drink three to four 750ml bottles of full strength beer per night and between five and six full strength bottles of beer on holidays and weekends. In the last few years he has also consumed two 440ml cans of bourbon and coke per night.
12. The second stressful episode occurred in approximately July 1971. The applicant was engaged in road construction on the side of a hill, the top of which was to be used as a gun post. The applicant reversed his tipper truck up the hill because it was not possible to drive forward and turn around. He was carrying eight tonnes of crushed rock. The road was narrow and had approximately one and half feet of clearance on either side with a very steep descent off the side. After the tipper was elevated the applicant recalled that the master cylinder of the braking system blew out. The truck was being pushed forward by the elevated position of the tipper and the handbrake was insufficient to hold the truck. He lowered the tipper, engaged the handbrake, placed the gears in reverse and turned off the engine. He said this had the effect of locking the wheels. He was not prepared to drive the truck down the roadway without footbrakes and called for the assistance of a bulldozer which made its way up the hill. The applicant caused his truck to then move forward to the rear of the bulldozer which then brought him down to level ground. The applicant said he was concerned that his truck may travel over the side of the road and he is now fearful of being at heights. He said he was ‘petrified’ and ‘terrified’ when he realised his brakes had failed and volunteered, as if to explain his reaction, you have got eight tonne of rock behind you and your brakes fail, what do you think? (transcript page 47 & 48).
13. After discharge from service, in addition to his increase in alcohol consumption, the applicant said he suffers from bad dreams and is unable to sleep without consuming large quantities of alcohol. He said his mood has changed especially over the last 10 to 15 years when, in his opinion, his mental attitude has deteriorated. He remains in full time employment and said that work is a distraction.
14. In cross-examination the applicant said that a history taken by Dr Percival found at page 13 of the T-documents was incorrect. It records that the applicant was drinking five or six 10 ounces glasses of full strength beer prior to enlistment on Saturdays. The applicant said that was not so but rather he drank three or four seven ounce glasses only. He agreed with the history taken by Dr Glaser who examined on behalf of the respondent (R8) who took a history of the applicant being a social drinker prior to the first stressful episode (refer above) and where two or three cans per night was being consumed.
15. The applicant largely adopted the evidence given by him at the VRB (refer transcript) where he said that he was presently drinking between five and six 750ml bottles of beer per day. He said that he also drank more on weekends and sometimes up to eight bottles per day. He said his alcohol consumption increased about 10 or 15 years previously when he would consume two or three pots of beer at a local hotel after work and then purchase four bottles of beer and take them home to drink.
joan simeon
16. The applicant's wife Joan Simeon gave evidence. She said that she knew her husband for approximately two years before she married him in 1977. It was only after her children were born and when she ceased drinking did she realise that her husband was drinking considerable quantities of alcohol every night. She recalled that he was drinking at least two and three stubbies every night and later progressively increased his consumption, especially during the day or on weekends when he was not working. He later started to consume spirits in addition to beer.
17. At the present time she said her husband is drinking between three and four bottles of beer per night and over the last five years he has been drinking spirits nightly as a mixed drink. She said her husband is presently taking long service leave and drinks large quantities of alcohol during the day. She could not say the quantity then consumed but is aware that he commences to drink early in the day. She returns home for lunch daily and is aware that he has been drinking.
18. Mrs Simeon corroborated the evidence of her husband that his mood had progressively become worse over the last few years, especially since her children left home about seven years ago. She said he has become unhappier, is upset about any discussion concerning Vietnam and walks away from television when Vietnam or war is broadcast. She said that her husband had become worse over the last few years especially as he has been required to talk about Vietnam to doctors and because of these proceedings.
ian davies
19. When the hearing resumed in Melbourne on 29 July 2009 Mr Moore called Ian Davies who provided a statement on 25 January 2009 which was received as Exhibit A4.
20. Mr Davies said that he served in SVN between 1970 and 1971 in the 1st Field Squadron of the Royal Australian Engineers. He said that he served with the applicant. He recalled an event in late 1970 where he travelled from base to Vung Tau on leave. He said leave was available every six weeks by a two-day pass. He travelled on the back of an open truck in a convoy of between six and eight trucks. He recalled that he was in the third truck from the front of the convoy and there were between a dozen and twenty persons on his truck. He said could not recall whether he and Mr Simeon were travelling on the same truck. The configuration of seating was of two rows running the length of the tray of the truck where persons would face each other. He said that he was a passenger on the left side of the truck.
21. Mr Davies recalled that the vehicles in front of his truck slowed as they passed through a small village or hamlet and he noticed that other persons were standing up and pointing and shouting at something to the left side of the road. He remained seated and was able to turn his head to the left and observed a female person, off the side of the road, propped up against an object and in a seated position. He observed that the person’s face and upper body were swollen and it was obvious that she had been shot in the head. He also observed congealed blood which was black in colour. The effect on him was to cause him to look away. He recalled that there was discussion about that person during the remainder of the journey but when they arrived at Vung Tau we all got on the grog.
22. In cross examination Mr Davies said that the body was about five to ten metres away from the side of the truck and was clearly visible. When he was informed that the applicant had said in evidence that the person was two to three metres away from the side of the road he did not dispute that that estimate of distance was possible. He said that persons seated opposite him had stood up and they were able to see the body. He also said that parts of the road between Vung Tau and Nui Dat were unpaved and dust was thrown up from the trucks. He said there were a number of villages between Vung Tau and Nui Dat together with a number of military checkpoints located at bridges. He could not recall whether the deceased body was near any of the checkpoints.
23. Counsel for the applicant, Mr Moore, advised that his instructor had made arrangements to call Jeff Blechynden, who provided a statement on 6 September 2007 (Exhibit A3), to give evidence by telephone. Two attempts were made to call him during the hearing and each was unsuccessful. His statement is reproduced as follows:
To Whom It May Concern,
I 5716784 Jeff Blechynden served with Wayne Simeon in 1 Field Squadron Royal Australian Engineers in Vietnam in 1970-71.
I can recall the incident that Wayne has claimed, it was as Wayne said we were going on R&C to Vung Tau when as we were passing through a village and noticed the body of a woman who had been shot tied to a cairn beside the road, presumably as a warning to others not to side with Australians.
I hope this assist [sic] you in your deliberations.
24. The T-documents contain a statement from Dennis Barrett who provided support for the body observed by the applicant and Mr Blechynden. The statement is found at page XVIII of the T-documents and is reproduced as follows:
To the Panel,
This letter is to confirm an event I witnessed whilst on transit to Vung Tau for R&C leave in I think around October 1970.
I remember travelling through a village (can’t recall name) when my attention was alerted by other members of our group as to a situation where there was a female Vietnamese lady who appeared to have had her life terminated and was placed on display for all people to see.
In my experience this was not uncommon as of other occasions if any contact was made with Australian servicemen just even on friendly terms this same practice would occur.
I realise its [sic] a long time since these events happened and are never forgotten.
In support of Wayne Simeon’s claim, I can vouch that this occurrence did actually happen.
25. Mr Douglass called Warren Barsley, a retired Colonel who served in SVN between 1968 and 1969 in an engineering unit. He provided two reports of 14 September 2007, found at page 66 of the T-documents and a further report of 19 December 2008 received as Exhibit R9.
26. Mr Barsley said that he located unit records but the names of persons who were granted leave would be kept in roll books. He found some of those documents but could not find any documented evidence of the applicant being granted leave in November 1970 however he did find that thirteen persons, who he described as unidentified, from the 1st Field Squadron were granted leave in November 1970 and another six were tasked to carry personnel to the R&C centre on 28 November 1970 (page 70 at para 14).
27. He said those unidentified persons would have been members of the applicant’s unit and it was therefore possible that the applicant was amongst those thirteen persons.
28. Mr Barsley said he was familiar with the road between Vung Tau and Nui Dat which he estimated to be about thirty kilometres in distance. He said that convoy vehicles would travel at about 30 kph and the journey would take approximately 1¼ hours. The duration would be dependent also on road conditions and traffic. He said the convoys were escorted and there were daily sweeps of the road for security purposes and also to clear obstructions and to report damage. He said that major incidents would be reported but the presence of one body only would not be regarded significant and probably would not have been reported.
29. When asked whether there were villages between Vung Tau and Nui Dat Mr Barsley produced a number of maps which depicted some small villages identified by the prefix ‘AP’. He also said that the roadway between Vung Ta and Nui Dat intersected near Hoa Long where the Hoa Long bypass road provided an alternative route into Nui Dat. He said documents indicating the route taken by the trucks in the convoy of which the applicant was a member would not ever have been published for security reasons.
30. Additionally, he said he had no knowledge of any hamlets or shanty towns along the roadway and, if they did exist, they would not necessarily be mapped. When he reviewed the applicant’s evidence from the first day of hearing by reading the transcript he assumed that the description given by the applicant would not have been of Hoa Long or Ba Ria.
31. Mr Barsley said that he only travelled on the road between Vung Tau and Nui Dat on one occasion and that was in 1968. He could not recall if it was paved. He was aware of a report completed by Mr Tilbrook from WriteWay on 1 June 2009 received as Exhibit R12 where a reference is made to a report from retired Lieutenant Colonel Tracey who said that between 1970 and 1971 the road between Vung Tau and Niu Dat was paved. Mr Barsley queried the definition of the word ‘paved’ and said that the road was not like the streets of Melbourne. His memory was of the road being constructed of hard rock but having a good surface. The maps that he had did not describe the road surfaces except roads which were weather affected and described as having either a hard surface or a light surface.
32. The witness volunteered that he had produced a graph, by regard to the evidence, of the truck in which the applicant was a passenger and its height from the roadway, having regard to photographs of a similar truck, depicted in the report completed by Mr Tilbrook. On the basis that the applicant had been seated on the right side of the vehicle and, having regard to the height of the tray of the truck from the road surface and regard also to the height of the sides of the truck, he concluded that the applicant, in a standing position, would not be able to see the body if it was three metres from the side of the truck. He said at a distance of six metres from the side of the truck the applicant would have only been able to see the person’s head and, for him to have seen the entire body, it must have been at a distance greater than six metres from the side of the truck.
Conclusion and Reasons for Decision
33. Mr Douglass on behalf of the respondent conceded if, as a fact, there was an event or events in service which gave rise to the diagnosis of Post Traumatic Stress Disorder that it would be appropriate to find on the balance of probabilities that that condition exists and that it is connected to service. It also would follow upon his concession that the conditions of alcohol dependence, alcohol abuse and hypertension are war-caused.
34. The difficulty with that proposition – and it is not unique to applications where veterans suffer from PTSD – is that the condition (in the absence of any other traumatic event) is subject to a finding of a traumatic event in service. But to make that finding before embarking on the four stages of analysis as recorded in Deledio (refer Repatriation Commission v Deledio (1998) 49 ALD 193) would be impermissible (refer discussion Gray J in Mines v Repatriation Commission [2004] FCA 1331 at paragraphs 39-41 and at 48).
35. Doctors Percival and Glaser, both of whom practice as psychiatrists, provided reports at the request of the parties. Both were satisfied that the applicant does suffer from PTSD (Dr Glaser described it as chronic).
36. Many prior decisions of the Federal Court and this Tribunal have discussed the decision in Deledio; it often being thought preferable to sequentially adopt its concluding summary in order to assure that the hypothesis relied upon by a veteran is identified before fact-finding is undertaken. However, this application, like many others, has a hypothesis which is obvious as will the relation of it to the applicable SoP…There are many cases in which the Tribunal can proceed to fact finding with little more than a glance at s 120(3) (refer Hardman v Repatriation Commission [2005] FCAFC 83 at para 32).
37. In the present application the applicant asserts that a connection exists between service and PTSD by reason of him observing a deceased body and, on another occasion, driving a truck with failed brakes. The circumstances of both of those events are described earlier. As a consequence of PTSD the applicant also asserts that he has suffered an alcohol dependence and alcohol abuse. Both of those conditions, either singularly or in tandem, were also responsible (by the hypothesis advanced by the applicant) for the development of hypertension. That condition has previously been found by the Veterans’ Review Board to be war-caused but that finding is challenged by the respondent in these proceedings. Nonetheless it concedes that in the event that the events giving rise to the PTSD are found as a fact to have occurred, the hypothesis of service precipitating PTSD has in turn been responsible for the conditions of alcohol dependence and alcohol abuse and hypertension.
38. Throughout the assessment period a number of SoPs have been issued by the Repatriation Medical Authority with respect to the above three medical conditions. Relevantly SoPs have been issued for PTSD being Instruments No 5 of 2008 and No 3 of 1999. The SoPs for alcohol dependence and alcohol abuse were Instruments No 1 of 2009, No 17 of 2008 and No 76 of 1998. The SoP for hypertension has principally been No 35 of 2003 but amended by Instruments No 3 of 2004 and No 11 of 2008 but only with respect to the quantities of alcohol which would need to have been consumed in order to satisfy the principle instrument. Neither of those amending SoPs are relevant to this review, there being no issue that the quantities of alcohol consumed far exceeded the minimum quantities prescribed.
39. The hypotheses advanced by the applicant are well known and there is an abundance of material that raises the hypotheses.
40. Insofar as the PTSD instrument is concerned, it was the contention of the applicant that both events gave rise to a response which involved intense fear, helplessness or horror, thereby satisfying paragraph 3(b)(A)(ii) of the 2008 instrument and an equivalent provision found at paragraph 2(b)(A)(ii) of the 1999 instrument. It was the contention of the applicant that he satisfied paragraph 6(a) of the 2008 instrument which is amongst a list of factors which must exist as a minimum in order to raise a reasonable hypothesis connecting PTSD with service, namely experiencing a category 1A stressor before the clinical onset of post traumatic stress disorder. A category 1A stressor is defined at paragraph 9 of the 2008 instrument as incorporating a number of circumstances which are recorded as being severe traumatic events and, relevantly, experiencing a life threatening event. The applicant relies on that factor with respect to the incident when he was driving the truck.
41. The 2008 instrument at factor 6(b) records that a reasonable hypothesis will be raised connecting PTSD with service if the veteran experienced a category 1B stressor before the clinical onset of post traumatic stress disorder. Such a stressor is defined at paragraph 9 of the 2008 instrument as incorporating a number of events (also recorded as being severe traumatic events) and relevantly (b) viewing corpses or critically injured casualties as an eyewitness and (c) being an eyewitness to atrocities inflicted on another person or persons.
42. The respondent engaged WriteWay to provide three reports. There was nothing from the reports which would indicate that the incident when the truck brakes failed or the incident when the applicant observed the deceased person did not occur. Whilst there was a sweep of the road between Vung Tau and Nui Dat daily, Mr Barsley thought that it would be unlikely that there would be any report made of a single body on the side of the road as opposed to the presence of multiple bodies.
43. I observed the applicant give his evidence in Bendigo and on review of the transcript of his evidence, the transcript of his evidence to the VRB and the histories taken by Drs Percival and Glaser I am satisfied that he has consistently recalled the event when he observed the body. Evidence was heard from Mr Davies and statements were lodge by Mr Blechynden and Mr Barrett. All persons were consistent in their recall of a body being present on the side of the road. The three witnesses all appear to have been members of the same convoy as the applicant and I am satisfied and find, as a fact, that there was a body on the side of the road as has been described.
44. There were some inconsistencies in the evidence concerning the location of the body but I would not expect the memories of persons to be accurate, 39 years after the event occurred, nor am I prepared to find that any of the witnesses or the applicant were sufficiently skilled to give accurate estimates of the body location. Indeed the location of the body was described differently by all of the witnesses and the applicant. Mr Davies said that the body was five to ten metres away from the truck but agreed that the applicant’s recollection may have been more accurate being two to three metres away. However, the applicant said (transcript pages 16 & 40) that the body was two to three metres off the side of the road and in his statement he said it was three or four metres away. Dr Percival took a history of the applicant being three metres away from the body and Dr Glaser took a history of the body being three or four metres off the side of the road. The estimates therefore of these distances depend on whether the measurement is taken from the side of the road, or from the side of the truck, or from where the applicant, or his witnesses, were located on the truck. Additionally there was no evidence of whether vehicles in SVN travel on the left or right hand side of the roadway which would be another factor relevant to the distance that the body was either away from the truck or from the person observing it. The variations in distances have not deterred me from finding that the body existed in the position as described nor would those distances have caused any impediment to the applicant or his witnesses being able to observe it.
45. There were also variations in the period of time that the applicant observed the body. In his evidence to the VRB the applicant said that he observed it for two to three minutes. In these proceedings the applicant agreed that it more likely would have been four to five seconds. That is an estimate which I find the most likely. There was evidence that the truck did not stop but it did slow down. It would appear on the evidence of Mr Barsley that the average speed would be in the vicinity of thirty kilometres per hour. It was the applicant’s evidence that the truck was travelling at about 20 kilometres per hour. It is inconceivable that the period of observation would have been any longer than a few seconds. The discrepancies in the evidence on this issue also do not deter me from finding that the body was present and the applicant observed it.
46. It was suggested that the description of the body given by the applicant was inconsistent with observing it for four or five seconds only, but the descriptions that were given are consistent with the applicant’s evidence to the VRB (Exhibit R3, page 5), Dr Glaser (Exhibit R8, page 2) and Dr Percival (T-documents, page 14). The applicant did not describe the body in minute detail but in general terms of its appearance. Despite the applicant’s reaction to his observation of the body he did remain focussed on it. On page seventeen of the transcript in these proceedings he said …I had to look to see what it was. I mean, I wasn’t sure what I had seen…I just wanted to make sure what I was seeing, I was seeing. The evidence on this issue does not deter me from finding that the body was present and that the applicant saw it.
47. The description of the reaction to the observation was also, in my view, consistent. The applicant described his feeling at the time to the VRB as shock, horror (Exhibit R3, page 7). A similar description was given to Dr Percival (Exhibit A2, page 2). Dr Glaser recorded that the applicant told him that he felt sheer f…ing horror…I got drunk that night…it wasn’t funny (Exhibit R8, page 2). In his evidence in these proceedings the applicant said it really upset me and it frightened me; I was petrified. I though ‘Christ’ this is going to happen to me.
48. In concluding this part there was some evidence about whether the roads were paved or sealed and whether dust might have obstructed the applicant’s vision of the body. The applicant described the roads as being dirt where dust would settle after rain. Mr Barsley said that the roads were of crushed rock. Mr Tilbrook, in the most recent WriteWay report (Exhibit R12), said that he recalled the road between Vung Tau and Nui Dat, and the bypass road, as being off bitumen surface. The applicant said that the trucks, when passing through villages, slowed down to reduce the presence of dust. It may also have been that trucks and vehicles slowed down because of the presence of other persons. If the road was paved, as Mr Tilbrook asserts, there would not have been dust by the passage of vehicles and there would not have been any obstruction by dust of the applicant’s line of vision to the body. If there was dust it was obviously of a minimal nature or quantity because it did not impede the applicant and his three witnesses from observing the body.
49. In all of the circumstances I am satisfied that the applicant did observe a body in the manner that he described and as supported by other witnesses. I am also satisfied that the applicant did suffer a reaction as he described in his evidence (transcript, page 17) and in the uninhibited manner to Dr Glaser. This event is clearly a category 1B stressor within the meaning of the 2008 PTSD SoP because the applicant was an eyewitness to an atrocity inflicted on another person and the viewing of a corpse.
50. I am satisfied for all of the above reasons that there is a sufficient connection between the circumstances of the applicant’s service and him having experienced a category 1B stressor. There is nothing that would indicate that the applicant suffered PTSD before that episode and it therefore follows that the category 1B stressor was experienced before the clinical onset of PTSD. His experiencing of a Category 1B stressor was objectively and subjectively reasonable and not difficult to comprehend, he being a 22 year old person who had been in SVN for only three months. The body was of a person who had been executed; it was exposed, apparently deliberately, and would seem to have been in a state of putrefaction. Observing the person would have been shocking and its representation would be alarming. The applicant’s reaction is not difficult to comprehend.
51. The episode with the truck caused a reaction to the applicant which he described (transcript, page 21) as having frightened the daylights out of me. Dr Glaser recorded that the applicant told him that he was that nervous…he was sick…[but] he kept on driving (Exhibit R8, page 3).
52. I am satisfied that the event of driving the truck and having the brakes fail, in the circumstances described by the applicant and having regard also to his location, would have been a frightening event, and may have been life threatening in order to constitute a Category 1A stressor, but I need not pursue that enquiry because I am satisfied that the applicant observing the body as described above, of itself, is sufficient to create the nexus between service and injury.
53. By reason also of the concession put by the respondent – properly in my view – the other conditions of alcohol dependence and alcohol abuse will be found to be war-caused and the decision made by the Veterans’ Review Board on 5 December 2007 with respect to hypertension will not be disturbed, by reason of the applicant suffering a clinically significant anxiety disorder (PTSD) for 6 months before the clinical onset – refer SoP No 35 of 2003 – factor 5(n) and paragraph 8.
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior MemberSigned: .....................................................................................
Grace Carney Personal AssistantDate of Hearing 19 May 2009 & 29 July 2009
Date of Decision 5 August 2009
Counsel for the Applicant Mr Moore
Solicitor for the Applicant Peter Liefman
Counsel for the Respondent Mr Douglass
0
3
0